Probate is necessary if the decedent left an estate of more than $150,000. An estate also may be necessary if the Estate is less than $150,000 where the estate distribution to heirs are in doubt as to who is the most likely to take under the law.
WHAT IS A PROBATE PROCEEDING?
The Court oversees the process of identifying the deceased persons property and identifying the propert heirs and distributing the property to them.
EXAMPLE:
Husband and Wife married in 2010 and purchased a home in 2015 took title as Community Property. Husband had been previously married and divorced in 2008. Husband dies in 2017 leaving the surviving spouse of the second marriage and one son of a previous marriage. Wife then dies in 2018. When the wife died she had no children and no husband as she did not remarry. Neither the husband nor wife had a trust or will. Both died intestate. Wife was survived only by her mother.
Question:
In Probate, how is the home distributed upon the death of the Wife, (i.e. the surviving spouse)?
The Law:
Intestate estate not passing to surviving spouse California Probate Code §6402
Except as provided in Section 6402.5, the part of the intestate estate not passing to the surviving spouse or the entire estate if there is no surviving spouse, passes as follows:
a.. To the issue of the decedent, the issue taking equally if they are all of the same degree of kinship to
the decedent, but if of unequal degree those of more remote degree take in the manner provided in
Probate Code §240
b. If there is no surviving issue, to the decedent’s parent or parents equally.
c. If there is no surviving issue or parent, to the issue of the parents or either of them who take equally if
they are of the same degree of kinship.
d. The 15 year Rule pursuant to California Probate Code §6402.5:
For purposes of distributing real property, if the decedent had a predeceased spouse who died not more than 15 years before the decedent and there is no surviving spouse or issue of the decedent, the portion of the decedent’s estate attributable to the decedent’s predeceased spouse passes as follows:
1. If the decedent is survived by issue of the predeceased spouse, to the surviving issue of the predeceased spouse; if they are all of the same degree of kinship to the predeceased spouse they take equally, but if of unequal degree those of more remote degree take in the manner provided in the Probate Code § 240
2. If there is no surviving issue of the predeceased spouse but the decedent is survived by a parent or parents of the predeceased spouse, to the predeceased spouse’s surviving parent or parents equally.
3. If there is no surviving issue or parent of the predeceased spouse but the decedent is survived by issue of a parent of the predeceased spouse, to the surviving issue of the parents of the predeceased spouse or either of them, taking equally if they are all of the same degree of kinship to the predeceased spouse, but if of unequal degree those of more remote degree take in the manner provided in Section 240.
Answer:
½ of the Home goes to the predeceased Husband’s son and ½ of the Home goes to the mother of the deceased surviving spouse.
Thank you for reading our article on whether probate is necessary. If you are in need of legal assistance, contact us at (310) 348-4900.